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POCSO ACT; Presumptions

Scholars are of differing views regarding the presumptions given under the POCSO Act. Some scholars have termed them draconian presumptions and some others have found them as essential for bringing the intent of the POCSO Act into action.

What is POCSO Act 2012

Emidio Pinho,

The Protection of Children from Sexual Offences (POCSO) Act 2012 is applicable to the whole of India. The POCSO Act 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from sexual abuse. It also intends to protect the child through all stages of judicial process and gives paramount importance to the principle of "best interest of the child".

Penetrative and aggravated penetrative sexual assault, sexual and aggravated sexual assault, sexual harassment, and using a child for pornographic purposes are the five offences against children that are covered by this act. This act envisages punishing even abetment or an attempt to commit the offences defined in the act. It recognizes that the intent to commit an offence, even when unsuccessful needs to be penalized. The punishment for the attempt to commit is up to half the punishment prescribed for the commission of the offence

This act suggests that any person, who has an apprehension that an offence is likely to be committed or has knowledge that an offence has been committed, has a mandatory obligation to report the matter i.e. media personnel, staff of hotel/ lodges, hospitals, clubs, studios, or photographic facilities. Failure to report attracts punishment with imprisonment of up to six months or fine or both. It is now mandatory for police to register an FIR in all cases of child abuse. A child's statement can be recorded even at the child's residence or a place of his choice and should be preferably done by a female police officer not below the rank of sub-inspector.

Bailable n Non Bailable Offences

All the criminal offences committed by an accused fall under two categories i.e. Bailable and Non Bailable.
Which offence is bailable and which one is non-bailable it is decided by the law (i.e. the Act which has defined an action as an offence). For example the Indian Penal Code has made the offence of molestation a bailable offence U/Sec. 354 IPC while not giving information of a tenant to the local police is made non bailable U/Sec. 188 IPC. Inflicting grievous injury with sharp weapon is bailable U/Sec. 324,325 IPC but mere possession of a knife is non bailable U/Sec. 25 Act.
Which offence is bailable and which one is non bailable, hence solely depends on the intention of the law and law makers. However, the approach of the law is different in both cases which is clear from the following description.

Arrest of a Husband

Husband and other relatives cannot be arrested without the permission of the Senior police Officers.

For raising the human face of Delhi Police, the commissioner of Delhi Police has issued some instructions to the police personnel to make changes in the arrest policy in relation to the offences U/Sec. 498A and 406 IPC .
The order makes note of the earlier judgments of the Supreme Court.

Arrest of a woman

Under Article14 of Indian constitution men and women are equal but simultaneously Article15 (3) empowers the state to make provisions in favour of women owing to her vulnerability. Women are more prone to crime owing to biological facts. To remove these disabilities and to countenance her modesty legislature enacted many enactments and courts bridge the gap, if any provided by legislation.

In Christian Community Welfare Council of India v. State of Maharastra (1995 Cr LJ 4223 Bom.) Bombay High Court, to uphold the dignity of women, held that no female persons shall be detained or arrested without the presence of lady constable and in no case, after sunset and before sunrise. But apex court in appeal (State of Maharastra v. Christian Community Welfare Council of India AIR 2004 SC 7), whilst agreeing with the object behind the direction issued by high court, opined that strict compliance of the said direction, in the given circumstance, would cause practical difficulties to the investigating agency and might give room for evading the process of law by unscrupulous accused.

Legislative Intent Behind Sec. 498-A IPC

The intention and objects behind enactment of Section 498A IPC have been beautifully outlined in 1999 judgment of Bombay High Court in (1998 Cri.L.J. 4496) B.K. Moghe Vs. State of Maharashtra and Another. A. V. Savant, J quoting the Statement of Objects and Reasons of Criminal Law (2nd Amendment) Act of 1983 says that the Statement of Objects and Reasons opens with following words: ----

“The increasing number of Dowry Deaths is a matter of serious concern the extent of evil has been commented upon by the Joint Committee of the Parliament constituted to examine the working of Dowry Prohibition Act, 1961 case of cruelty by the husband and the relatives of the husband which culminate in suicide by, or murder of the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is therefore proposed to amend the IPC, CrPC and Evidence Act suitably to deal effectively not only with cases of Dowry Death but also cruelty to married woman by their in laws.